Natural law: definition, differences and examples

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Natural law provides universal and immutable principles that guide and limit positive law.
The validity of the law depends on its conformity with justice; extreme injustice undermines its status as law.
From Greece and Rome to Aquinas, Grotius, Hobbes and Locke, his trajectory explains his weight in human rights.

If you've ever wondered why certain rules seem valid to us regardless of what a code says, you're knocking on the door of natural lawThis large family of theories maintains that there are principles of justice prior to and superior to any written law, and that when positive law departs from them, it loses its deepest legitimacy.

However, not everyone understands the same thing by natural law, nor do they justify it in the same way. Under the umbrella natural law theorist Approaches that appeal to reason, human nature, or even divine law coexist. Essentially, they share one idea: there is universal criteria for correction which the legislator must respect. And, mind you, this is not merely a theoretical discussion: historical arguments about the law have arisen from it, for example. right to resist oppression or the defense of human rights.

What is natural law and how does it differ from positive law?

Natural law is usually defined as the set of universal and immutable principles of justice that emanate from human nature and are grasped by reason. It is not the product of a specific normative will: it imposes itself by its own weight as the “order of existence,” in the expression of Johannes Messner, that is, as the framework of what is fair in which any order must move.

In contrast, positive law is the law "established": current norms emanating from a human authority (usually the State) and endowed with coercive power. It is variable, historical, and therefore contingent. For natural law theory, this positive law is authentic law insofar as it respects the limits and requirements of natural law, which acts simultaneously as a foundation, control, and complement.

The main difference, to put it bluntly, is the the originNatural law derives from what we are (and from what reason discovers as just), while positive law derives from what the established power decides. Therefore, those who emphasize natural law will say that human laws, to be just, must fit with those principles previous ones; and those who emphasize positivism will focus on the formal validity and effective application of the norm.

The natural law thesis today: justice, validity and the Radbruch turn

An influential formulation of the link between justice and validity is that associated with Gustav Radbruch: when the injustice of a law reaches an extreme degree, it ceases to be a right for the purposes of validity. After the National Socialist horror, Radbruch defended the existence of a right “supralegal"which serves as a limit to openly arbitrary laws."

Robert Alexy has explained two possible interpretations of that idea. The “irradiation thesis” would see how the extreme injustice of basic rules infects to the entire legal system; the “collapse thesis”, on the other hand, would apply the corrective measure on a case-by-case basis, invalidating only the rules particularly intolerableAlexy opts for this second reading for reasons of legal certainty.

Not all natural law theorists draw the same map of consequences. Some admit that not every moral transgression constitutes a violation. to cancel not a law, but only a serious clash with fundamental principles. In any case, they share these ideas: there are universal criteria Regarding good and evil, these are knowable through reason; law has a moral foundation and a legal system that directly ignores these principles. loses its status of authentic law.

Incidentally, various empirical studies have suggested that certain sense of justice It appears very early in human beings, which links with the natural law intuition that there are common bases in our species.

Classical origins: from Antigone to Roman law

The contrast between human laws and “unwritten” laws already appears in Greek tragedy. In Sophocles' Antigone, the protagonist appeals to higher norms against the nomos of the city. This idea of laws that supersede the decrees of the ruler would be a reference point for those who maintain a upper right to the positive.

In Aristotle we find the distinction between legal justice and natural justice: the natural has the same force everywhere, although it admits certain detail changes linked to human nature and its development. His analysis of human rationality led him to see reason as “natural law"And, with all its shadows, even to justify slavery in terms of nature in his time."

Stoicism took a decisive turn: human reason, the spark of Logos that orders the cosmos, establishes a natural law that applies to everyone. Cicero, following this line of thought, presents the law as straight ratio that commands what is right and prohibits what is wrong, a guideline by which to measure justice and injustice in any place and time.

Roman law incorporated these intuitions. Texts attributed to Ulpian describe a law that... nature teaches to all beings, and Gaius goes so far as to equate natural law and the law of nations. The famous triad of precepts—to live honestly, not to sin—was also established in this tradition. harm another and give to each his own.

Christianity and Scholasticism: Eternal, Natural, and Human Law

Christian tradition assimilated and perfected this framework. Saint Isidore of Seville spoke of a common law for all nations, natural and equitableThe great synthesis would come with Thomas Aquinas: there is an eternal law (divine reason that governs the world), a natural law (participation of that law in the rational creature), and a human law that drift from the previous one to specify the common benefit.

For Saint Thomas, natural law is universal and immutable in its most general principles: Do good and avoid evilFrom it stem precepts relating to the preservation of life, procreation and the education of children, social life, and the search for truth. Therefore, human law cannot contradict natural law or the divine law.

This line of thought would be developed by theologians such as Domingo de Soto or Francisco Suárez. In a more modern sense, Christianity appeals to a “law written in the hearts”, an idea taken up by the Catechism of the Catholic Church when it deals with the natural moral law (nn. 1954-1960).

The School of Salamanca and modernity: Grotius and the autonomy of reason

The Jesuits and the School of Salamanca gave a formidable impetus to natural law. Suárez, for example, defended the autonomy of natural law. In the 17th century, amidst the Wars of Religion, Hugo Grotius sought to establish a common moral framework among nations, with natural law as its key. His rationalist proposal maintains that the rules dictated by the straight ratio They allow us to identify what is honest and what is clumsy according to our rational nature, to the point of affirming that this natural right would remain in force even "if there were no" divine intervention.

Hobbes: state of nature, laws of reason and contract

For Thomas Hobbes, in the state of nature everyone possesses a fundamental right: to use their own power to preserve life. He calls the precepts of reason that prohibit self-destruction and command the means to preserve us “natural laws.” But, without a sovereign power to ensure their fulfillment, these laws lack force mandatory.

Hence his famous warning: without a state, human life becomes an uncertain struggle, with the infamous war of all against all. The solution is... contrato socialwhereby we cede part of that natural liberty to gain peace and security under a sovereign. Hobbes clearly separates “law” (obligation) and “right” (absence of obligation), which represented a break with the medieval approach that gave priority to duties.

Locke: inalienable rights, equality, and limited government

John Locke defended inalienable natural rights: life, liberty and propertyHe understood that human beings are equal and free by nature, and that government exists to safeguard those rights. If power fails seriously and persistently, then the substitution of the government.

Locke compared his vision to accounts from indigenous peoples whom he saw living in a “state of liberty” rather than license. His emphasis on the footing It has been interpreted as a foundation for later civil rights and suffrage movements. And although there is historiographical debate about its direct influence on American independence (ranging from the criticisms of Ray Forrest Harvey and John Phillip Reid to the defenses of Thomas Pangle and Michael Zuckert), its influence is evident in the liberal tradition.

In concrete terms, he stated that every person has the right to live, to do what does not conflict with the rights of others, and to possess what they produce or obtain lawfully, always respecting the life and freedom alien. That architecture shaped the modern notion of natural rights as faculties of the individual.

From natural law to positivism: schools, authors and contemporary shifts

In the 19th century, the historical school of law (Savigny) was consolidated, which valued tradition and custom as a legal source, bridging the gap with positivism. The latter will gain considerable strength with approaches such as Hans Kelsen's pure theory, focused on normative validity independent of moral evaluations.

In France, the influence of the Napoleonic Code led many jurists to look to the codes all the answers, avoiding acknowledging gaps. In Germany, after the BGB of 1900, legal doctrine became very systematic, distinguishing between what is and what ought to be. Jellinek proposed the self-limitation of the State: in creating law, it is subject to the law it itself produces. And Austin, in England, conceived of law as a command of the sovereign, separate from morality.

It is important to remember that, even within positivism, authors such as Saleilles and Geny acknowledged the influence of extra-legal factors in property law, relativizing deductive formalism. After the Second World War, natural law was revived as a reaction to totalitarianism, with the Universal Declaration of Human Rights. Human rights (1948) as a political-moral milestone.

In contemporary thought, HLA Hart defended a “minimum” of natural law (for example, some basic equality or protection from violence) as rational floor for any system. John Finnis, for his part, has reworked a rational natural law with his theory of “core and peripheral cases”, identifying basic goods and practical reasons.

On the political front, movements such as libertarianism or MN Rothbard's anarcho-capitalism have advocated a universal law for coexistence in freedom, drawing on Lockean legacies on property and contract.

The structure of natural law and its relationship to positive law

From the philosophy of law, it is emphasized that natural law constitutes a legal order objective (not merely moral or religious). Its norms have a prescriptive structure and a binding force that reason can recognizeAt the same time, they are abstract and universal, and therefore need to be made concrete through positive law adapted to each society and time.

The natural one acts as basis It serves three main purposes: as a positive principle (justifying it), as a limit (preventing unjust deviations), and as a complement (inspiring solutions where the legislator falls short). In social life, its foundation gives rise to demands associated with three major aspects. trends human: preservation of life, propagation and care of offspring, and life in community.

Essential freedoms derive from that foundation: from awarenessof worship, action (in its various forms), association, and political participation, always within the limits of the common good and the rights of others. Institutions such as the your property, the duty not to harm, the repair of the damage caused and the fulfillment of obligations.

A classic formulation summarizes these pillars well: live honestly, not harm to others and give each person what is due to them. This compass has guided the construction of private law and criminal law for centuries.

Clear examples: natural versus positive

Examples of natural law (principles understood to precede the legislator and be universalizable) could include, among others, those stated in major historical declarations. The 1948 Universal Declaration recognizes the right to lifeLiberty and personal security, legal personality everywhere, and freedom of movement and choice of residence. And the Declaration of 1789 establishes liberty, freedom, and security as the aims of all political association. your property, security and resistance to oppression, as well as the inviolability of property with just compensation in the face of public necessity.

Art. 3 UDHR: life, liberty and personal safety.
Art. 6 UDHR: recognition of legal personality everywhere.
Art. 13 UDHR: move freely and establish residence within a State.
Article 2 of the 1789 Declaration: liberty, property, security and resistance to oppression.
Art. 17 Declaration of 1789: inviolable property and expropriation with fair compensation.
Classical reference (Antigone): universal duty of respect the burial of the dead.

Examples of positive law (rules issued by the State that govern here and now) abound in Spanish texts: the Civil Code establishes the enforcement of criminal and public order laws to all those present in Spanish territory; subjects real estate to the law of the place where it is located; and the General Regulations for Drivers require permission prior to driving. The General Tax Law recognizes the taxpayer's right to be informed and assisted, and administrative legislation guarantees the access electronic to the administrations.

Art. 8.1 CC: criminal, police and security laws require all in Spanish territory.
Art. 10 CC: real estate governed by the law of place where they are located.
Art. 1.1 RGC: to drive it is necessary to have permission or license.
Art. 2 RGC: ordinary permits are issued by the Headquarters Provincial Traffic Offices.
Art. 34.1.a LGT: right of the taxpayer to be informed and assisted.
Art. 13.a LPACAP: right to communicate with public administrations through the Stitch Electronic General Access.

Authors and prominent positions

Among the great defenders and architects of natural law are leading classical and contemporary thinkers. Their approaches range from theological to rationalist, including more recent proposals that sharpen the analysis of the basic goods.

PlatoAristotle, Zeno of Citium, Cicero, Seneca.
Thomas Aquinas, Fernando Vázquez de Menchaca, Francisco de Vitoria, Domingo de Soto, School of Salamanca.
Francisco Suárez, Hugo Grotius, Thomas Hobbes, Christian Wolff, Thomas Jefferson.
John Locke, Jean-Jacques Rousseau, Immanuel Kant, Gottfried Achenwall.
Robert Alexy, Jean Barbeyrac, Benedict XVI, Luigi Taparelli d'Azeglio.
Emil Brunner, Adam F. von Glafey, JC Hoffbauer, LJF Höpfner.
Hans-Hermann Hoppe, Gottlieb Hufeland, JA von Ickstatt, KA von Martini.
Johannes Messner, Robert Nozick, Oliver O'Donovan, Samuel von Pufendorf.
Gustav Radbruch (after 1933), Ayn Rand, Murray N. Rothbard, Lysander Spooner.
Christian Thomasius, Franz von Zeiller, John Finnis, Erick M. Rovers.

Among the critics and antagonistic or skeptical approaches to natural law are authors who emphasize the autonomy of positive law or the historical, sociological, or voluntarist of the law.

Baruch Spinoza, Max Stirner, Jeremy Bentham, Friedrich Nietzsche.
Karl Barth, HLA Hart, Norbert Hoerster, Hans Kelsen.
Gustav Radbruch (until 1933, discussion), Alf Ross, Peter Stemmer.
Ernst Topitsch, Norberto Bobbio.

A critical look: Gustavo Bueno's reading

The philosopher Gustavo Bueno proposes a very critical reading of the opposition between law and law. natural/positiveIn his view, rather than a classification of rights, it is a distinction between theories: “natural law” would operate as a controversial and ideological concept with which social groups demand changes in the face of current law.

His analysis reviews classical precedents (norms "according to nature" versus conventional ones), their Christian reworking (God's law known by the Church, with the tension between theology natural and positive) and modern turns (natural vs. positive religion, natural vs. positive language). Here he cites the case of the linguist Marr—and Stalin's subsequent critique—as an example of the excesses of postulating a natural language pure versus historical languages.

In contemporary times, Bueno recalls the attempts to progressively identify natural law and positive law: in a Hegelian key (the State as realization) History of reason) or social democratic (gradual improvements via parliaments). He also points out that human rights only have legal force when the States They incorporate them, and mentions that in 1948 there was no universal adherence.

To illustrate the current dialectic, he comments on three controversies: abortion (as a supposed “natural law“of the woman who is legitimized by being democratically affirmed), homosexual marriage (semantic tension between word and concept in historical institutions linked to sexual difference) and the welfare state (sometimes claimed as a natural right when it is the result of historical processes specifics).

His final thesis is unequivocal: there are no “natural rights” above and outside of positive law, but programs and aspirations that seek to transform existing law. Ethical (individual), moral (group), and legal (state) norms operate on multiple scales and with possible conflicts among them. The coercive feature of positive law is essential; therefore, to simply identify the “natural” with the “legal” or to radically separate law and coercion would be, for Bueno, a error conceptual.

Given history, doctrines, and controversies, natural law serves as a compass for judging the justice of laws, while positive law provides the framework that makes it possible to apply and protect rights in real life; understanding how they dialogue (and they clash) both dimensions is key for any jurist who does not want to lose sight of either legal certainty or the demand for material justice.

Sources of Law: concept, classifications and comparative systems